Citation Nr: 1216617
Decision Date: 05/09/12 Archive Date: 05/16/12
DOCKET NO. 08-21 672 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUE
Entitlement to a disability rating greater than 10 percent for bilateral pes planus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
April Maddox, Counsel
INTRODUCTION
The Veteran served on active duty from April 1956 to April 1976.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that, aside from the June 2011 QTC VA examination report noted below, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.
In July 2007, August 2007, and March 2008 correspondence the Veteran raised the issues of entitlement to service connection for disorders of the knees, hips, and back as secondary to his service-connected bilateral pes planus. The issue regarding the back was adjudicated in a July 2008 rating decision and, in February 2009 correspondence the Veteran withdrew his claims regarding the back and knees, however, the Veteran did not withdraw his claim regarding the hips. The issue of entitlement to service connection for a bilateral hip disorder has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
Initially, the Board notes the RO has not had a chance to review several pertinent VA treatment records, including a June 2011 QTC VA examination report. Specifically, the RO last issued a supplemental statement of the case (SSOC) in May 2009 and, subsequently, the Veteran was afforded a QTC VA examination in June 2011 specific to his bilateral foot disorders. The Board also notes that a waiver of RO review has not been received in conjunction with this new medical evidence. Accordingly, the case must be remanded to the RO so that the RO may consider the claim in light of the evidence received subsequent to the May 2009 SSOC. See generally See Disabled American Veterans et. al. v. Secretary of Veterans Affairs (DAV), 327 F.3d 1339 (Fed. Cir. 2003) (the Board may not consider additional evidence without having to remand the case to the agency of original jurisdiction (AOJ) for initial consideration and without having to obtain the appellant's waiver); 38 C.F.R. § 20.1304(c).
Also, the Board notes that in November 2006 the Veteran submitted an authorization form to obtain private treatment records from Dr. D.M.H. for treatment he obtained for his feet from October to November 2006. The RO requested records from Dr. D.M.H. in December 2006 but a response to this request was never received. Subsequently, in August 2007 the Veteran submitted records from Dr. D.M.H. dated in September 2006. As there appears to be missing records from Dr. D.M.H., on remand the RO should make one last attempt to obtain any outstanding treatment records from Dr. D.M.H. dated from October to November 2006.
Accordingly, the case is REMANDED for the following action:
1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his feet, including any private providers, to specifically include records from Dr. D.M.H. dated from October to November 2006. After securing any necessary release, such records should be requested, to include all diagnostic testing, interpretation and reports, and all records which are not duplicates should then be associated with the claims file.
2. Once the above action has been completed, readjudicate the claim and issue a supplemental statement of the case which specifically discusses all evidence received since the May 2009 SSOC, specifically the June 2011 QTC VA examination specific to the Veteran's feet. Then afford the Veteran the requisite opportunity to respond before the claims file is returned to the Board for further appellate action.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).